Softplay v Perpetual [2002] NSWSC 1059

Softplay v Perpetual [2002] NSWSC 1059

The plaintiff established a serious question to be tried regarding both the alleged unconscionable conduct under the Retail Leases Act and the alleged breaches of lease covenants, and the balance of convenience favours maintaining the status quo because the risk of permanent or irreparable harm to the plaintiff outweighs the inconvenience to the defendants. Accordingly, interlocutory injunction should be granted pending trial.

Jurisdiction
Australia
Judgment Date
07 November 2002
Procedural Posture
Interlocutory Application / Application for Interlocutory Injunction Pending Trial
Outcome
Interlocutory injunction granted until further order, upon undertaking as to damages.
Legal Topics
['retail Leases' 'unconscionable Conduct' 'covenant for Quiet Enjoyment' 'derogation From Grant' 'implied Good Faith Obligation' 'interlocutory Injunctions']
['equity' 'commercial Law' 'leases'] ['retail Leases' 'unconscionable Conduct' 'covenant for Quiet Enjoyment' 'derogation From Grant' 'implied Good Faith Obligation' 'interlocutory Injunctions']

Case Brief

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Procedural Posture

Interlocutory Application / Application for Interlocutory Injunction Pending Trial

Legal Issues

  1. 1 ["Whether lessor's proposal to offer free play facilities breaches statutory duties under Retail Leases Act 1994" 'Whether proposal breaches covenant for quiet enjoyment or constitutes derogation from grant' 'Whether there is an implied obligation of good faith in the leases' 'Whether there is a serious question to be tried for the purposes of interlocutory injunction' 'Balance of convenience between parties']

Ratio Decidendi

The plaintiff established a serious question to be tried regarding both the alleged unconscionable conduct under the Retail Leases Act and the alleged breaches of lease covenants, and the balance of convenience favours maintaining the status quo because the risk of permanent or irreparable harm to the plaintiff outweighs the inconvenience to the defendants. Accordingly, interlocutory injunction should be granted pending trial.

Court Disposition

Interlocutory injunction granted until further order, upon undertaking as to damages.

Orders

  • ['Orders 1, 2 and 3 made on 31 October 2002 and continued on 6 November 2002 are extended until further order upon the usual undertaking as to damages by the plaintiff.']